Winterbottom & Jardine
[2023] FedCFamC1F 912
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Winterbottom & Jardine [2023] FedCFamC1F 912
File number: SYC 6423 of 2023 Judgment of: HENDERSON J Date of judgment: 26 October 2023 Catchwords: FAMILY LAW – NULLITY – Consent – Where the applicant asserts he was mentally incapable to consent to the marriage on the basis of mental disorders and learning difficulties – Where the respondent filed a Submitting Notice – Finding the applicant was not mentally incapable – Formalities – Where the applicant asserts certain requirements under the Marriage Act 1961 (Cth) were not complied with – Where such non-compliance does not invalidate a marriage – Application for nullity dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 51.
Marriage Act 1961 (Cth) ss 23B, 23B(1), 23B(1)(d)(iii), 42, 42(1)(a), 42(5), 42(5A), 42(10), 46, 48.
Cases cited: AK and NC (2004) FLC 93-178; [2003] FamCA 1006.
Pannos & Fotinos [2020] FamCA 102.
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: On the papers Place: Sydney – in Chambers Solicitor for the Applicant: Hammond Nguyen Turnbull The Respondent: Litigant in person (Did not participate) ORDERS
SYC 6423 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WINTERBOTTOM
Applicant
AND: MS JARDINE
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Initiating Application filed 30 August 2023 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Winterbottom & Jardine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
INTRODUCTION
This is an application for a declaration of nullity of a marriage filed by the applicant, Mr Winterbottom, on 30 August 2023. The respondent, Ms Jardine, has submitted to the application and agrees that the Court should make the declaration sought.
Although the parties had executed a Minute of Order for the declaration to be made, a declaration such as this is not a matter of consent by parties and requires the Court to make a finding that the marriage is void within the meaning of section 51 of the Family Law Act 1975 (Cth) (“Family Law Act”) and only then to make the resulting declaration. To that end, section 23B of the Marriage Act 1961 (Cth) (“Marriage Act”) sets out the grounds upon which a marriage may be declared as void.
EVIDENCE
The evidence read was as follows:
(1)Initiating Application filed 30 August 2023;
(2)Affidavit of Mr Winterbottom filed 30 August 2023;
(3)Submitting Notice filed by Ms Jardine on 5 October 2023;
(4)Orders made on 11 October 2023; and
(5)The marriage certificate filed 19 October 2023.
The proceedings were transferred to Division 1 of this Court on 24 October 2023 as only Division 1 has power to grant a declaration of nullity. The parties consented to the matter being heard in Chambers and a judgment being published.
For the following reasons, the application for a declaration of nullity must fail.
THE LAW
Section 51 of the Family Law Act prescribes that a decree of nullity shall be based on the ground that the marriage is void.
Section 23B of the Marriage Act relevantly provides:
23B Grounds on which marriages are void
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
(b) the parties are within a prohibited relationship;
(c) by reason of section 48 the marriage is not a valid marriage;
(d) the consent of either of the parties is not a real consent because:
(i) it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii)that party did not understand the nature and effect of the marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
Further, section 48 of the Marriage Act provides as follows:
48 Certain marriages not solemnised in accordance with this Division to be invalid
(1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.
(2) A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;
(e) failure to comply with the requirements of section 44 or 46;
(f) failure to comply with the requirements of section 13.
(3)A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.
SHORT SYNOPSIS
The applicant’s case to support a declaration of nullity rests on two main submissions:
(1)He was suffering under a mental incapacity such that the consent he gave was not a real consent;[1] and
(2)The marriage celebrant failed to carry out certain statutory obligations and that these matters combined render the marriage invalid.[2]
[1] Marriage Act 1961 (Cth) s 23B(1)(d)(iii).
[2] Marriage Act 1961 (Cth) ss 42(1)(a), 42(5), 42(5A), 42(10), 46.
In relation to being married to someone else at the time, the only evidence deposed is that the respondent did not produce any evidence of divorce at the marriage ceremony otherwise there is no evidence in that regard.
Otherwise, the applicant does not plead any other matters under section 23B.
EVIDENCE
I have proceeded on the basis to disregard whether the evidence before me was admissible to take the applicant’s case at its highest.
Mental incapacity
The applicant asserts that he was suffering under a mental incapacity such that the consent he gave was not a real consent and this led him to not be able to understand the nature and effect of the marriage ceremony.
The applicant’s evidence was that he has had a history of mental illness, including attention deficit hyperactivity disorder (ADHD), another mental health disorder, drug induced psychotic episodes, and adjustment disorders symptoms suggestive of autism spectrum disorder (ASD).
To support those claims, he annexed a letter from Dr B, psychiatrist and psychotherapist, dated 10 May 2023. This report states that the applicant has been under her care since March 2020 and that he has complex and chronic psychiatric issues.
Dr B’s letter goes on to state that the applicant has been diagnosed with learning disabilities and ADHD in childhood, that he had long-standing issues with another mental health disorder, that he has intermittently abused alcohol and illicit drugs, and suffered from intermittent drug‑induced psychotic episodes, and that he has lifelong symptoms suggestive of ASD issues that were never assessed or treated. Further, the applicant was diagnosed with a physical condition in 2020. The letter then sets out the multiple medications the applicant is prescribed.
The applicant’s evidence is that he often forgets to take his medication. He deposed that the parties met in early 2023, and he moved into the respondent’s place of residence around one month later having not taken his prescribed medication for the previous two weeks. On the same day, he proposed to her, which she accepted. The parties married one week later.
There is no evidence in Dr B’s report nor that of the applicant to support an argument that he had no capacity to give consent to a marriage by reason of mental impairment or deficit. This contrasts with Pannos & Fotinos,[3] where Hartnett J had sufficient evidence that the applicant was mentally incompetent and could not provide real consent.[4]
[3] [2020] FamCA 102 (Hartnett J).
[4] [2020] FamCA 102 at [26].
In the present case, the highest the applicant’s medical evidence comes to is that he has some mental health issues which have affected his functioning in society but not that he is unable to make an informed decision or give real consent because of his mental health issues. This falls short of the tests discussed by Chisholm J in AK and NC.[5]
[5] (2004) FLC 93-178 at [18]–[24] (Chisholm J).
The only evidence the applicant gives regarding his lack of understanding of the nature of the ceremony he went through is as follows:
30.I felt as though I did not understand what was going on. I repeated my vows which were whispered into my ear by the marriage celebrant. It was also the first time I had ever heard the vows.
(As per the original)
This is insufficient evidence to support a declaration that the applicant did not understand the nature and effect of the ceremony he was going through as he knew it was a ceremony of marriage. Nor is it sufficient to find that he did not consent to the marriage. His evidence quoted above is at best equivocal for he knew he was at a ceremony with a marriage celebrant with the woman he had proposed to and that he repeated vows that were whispered into his ear.
On this evidence, I find that the applicant knew and understood he was going through a ceremony of marriage, knew the effect of a marriage ceremony given he proposed it, and had capacity to give consent to the marriage as he did. I also accept he may now regret his hasty decision.
Statutory obligations of the marriage celebrant
The second limb of his argument is that the marriage celebrant did not comply with his statutory requirements under sections 42 and 46 of the Marriage Act.
Section 48 of the Marriage Act is clear that a failure to comply with the requirements of section 42 and 46 do not render a marriage invalid.
There is simply no evidence proffered that the applicant, who made the proposal of marriage, did not understand the effect of a marriage relationship. His affidavit contains no such evidence. Rather he relies upon the fact that the marriage celebrant did not carry out their obligations and duties according to the Marriage Act and that he suffers from some mental health issues to make out his case. Nowhere does he say he did not understand what he was doing or going through.
I accept the applicant may well be correct that the marriage celebrant did not carry out his statutory obligations when one has regard to paragraphs 31 to 43 of his affidavit. However, such a finding is insufficient grounds to make the declaration sought.
I must be satisfied when making a declaration of nullity that the marriage is void pursuant to section 51 of the Family Law Act, and to that end, section 23B of the Marriage Act which sets out the grounds upon which I can declare a marriage to be void.
CONCLUSION
The applicant has failed to establish any ground upon which a declaration could be made, and I dismiss his application for a nullity.
I make the orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 26 October 2023
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